If you have been accused of Drunk Driving, when you enter a plea to the charges of DUI you will also need to sign an acknowledgement of rights. If you have retained an attorney, you DUI lawyer may be able to file a document with the Court stating that he has explained your rights to you. Those rights come from a combination of the federal constitution, the state constitution, and Montana law.

Although it isn’t an exhaustive list of every right you enjoy as someone accused of a crime in the U.S., it is a pretty good outline of the major ones. For example, as I have talked about numerous times before, the prosecution must prove your guilt beyond a reasonable doubt. YOU ARE PRESUMED TO BE INNOCENT. Too often we just pay that phrase lip service and forget what it really means. But it is the cornerstone of our justice system and something everyone needs to be reminded of.

You also have to the right to appear before a judge or magistrate.

You have the right to remain silent and refuse to testify during any stage of the proceedings. Your silence does nto imply any wrongdoing on your part and cannot be used against you.

You have the right to enter a plea of not guilty and to have a trial by a judge or a jury.

You have the right to a speedy and public trial within six months of your entry of a not guilty plea.

You have the right to confront witnesses called to testify against you,a nd to cross examine those witnesses.

You have the right to present evidence in your defense at trial and to comel the attendance of witnesses with subpoenas issued by the Court.

You have the right to an attorney. If you cannot afford one, you may ask the Court to appoint one for you. A public defender will be appointed if you qualify financially.

The problem with rights are that they need to be protected. Vigilantly. Or else people tend to walk all over them. One of my most important jobs as a DUI defense attorney is to know all the rights my clients have, and be on the constant lookout for anyone trying to violate them.

If you are unsure what rights you have in a DUI case, please call me today to schedule a free meeting to discuss your situation. My number is 406-752-6373 and I am always happy to discuss my favorite topic: protecting the rights of those accused of a crime.

Most DUI cases in Montana do not go to trial. There are a thousand different reasons for this, and they’re not worth getting in to at this time. However, it is a defendants unequivocal right to have all the elements of any criminal charges against him proven by the State beyond a reasonable doubt.

At trial the State will present its case and the Defendant will present his. Many people think of a defense attorney’s job as putting on the best possible story for his client. But often the most important part of my work is limiting the State’s case as much as possible. So when they try to present evidence of Breath Alcohol Content (B.A.C.) I make sure that the test complied with the many and strict constitutional requirements of the State and Federal Constitutions. If it doesn’t, then the evidence is inadmissible and cannot be shown to a jury or considered by a judge. If the State cannot prove an element of the case, then they cannot meet their burden and the charges must be dismissed.

So while the case your attorney builds is vital – what he manages to keep out of the State’s case may be even more important.

The elements of a DUI in Montana consist of proving that the Defendant:

was driving or in actual physical control of a vehicle;

upon the ways of this state open to the public while under the influence of alcohol; or within this state while under the influence of drugs or a combination of alcohol and drugs;

was under the influence of alcohol, drugs or a combination of alcohol and drugs; and

within city/county to establish venue and jurisdiction

for a DUI Per Se violation, the prosecution must prove that the defendant:

was driving or in actual physical control of a vehicle;

upon the ways of this state open to the public;

while the alcohol concentration in the blood, breath or urine was 0.08 or more; and

within city/county to establish venue and jurisdiction.

If you have questions about what needs to be proved for a DUI or DUI Per Se in Montana, call me today to discuss your case. I offer a free consultation and am always happy to take the time to help people understand their legal situation. Call 406-752-6373 to schedule a free consultation.

In State v. Weer, recently decided by the Montana Supreme Court, Mr. Weer appealed the District Court’s decision to not reinstate his driver’s license. As we’ve discussed before, refusal to submit to a preliminary breath test in Montana results in the automatic suspension of your driver’s license. This is based on the Montana implied consent statute which says that a person driving in Montana has impliedly consented to give a breath test. A person who has had their license revoked under this statute can challenge the revocation in District Court, but they are limited to proving that the arresting officer did not have sufficient particularized suspicion to request the breath test.

In Weer’s case, a highway patrolman following him observed his vehicle swerve twice toward the centerline and then cross the centerline. At that point he initiated a stop based on suspicion of DUI, during which Weer refused to submit to the officer’s request for a preliminary breathalyzer test.

Weer challenged the revocation, claiming that the officer did not have sufficient particularized suspicion to initiate an investigative stop and conduct a DUI investigation. The District Court ruled against him after conducting an investigatory hearing.

The Montana Supreme Court reiterated the requirement that “to justify an investigatory stop of a motor vehicle, the State has the burden to show: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” Also, the Court noted that “the question is not whether any one of [the petitioner’s] driving aberrations was itself ‘illegal’ but rather, whether [the officer] could point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”

Because this is a totality of the circumstances test, it does not matter whether the officer can point to one specific infraction. In this appeal, Weer argued that crossing on to the centerline was not a violation, therefore the officer lacked particularized suspicion. The Supreme Court agreed with the District Court and found that it is irrelevant whether Weer committed a specific traffic violation.

The take home lesson from Weer: even if you have committed no traffic violations, an officer may still initiate a traffic stop and require you to give a preliminary breath test.

A deferred prosecution is a type of plea bargain, and basically a contract with the Court where you agree to meet certain conditions in exchange for the Court agreeing to postpone prosecution of your case. If you complete all the requirements, your case will be dismissed and no conviction will be entered against you. Let that sink in for a minute. No conviction. Not for anything. You can see why deferred prosecutions are very appealing to Montana DUI defendants.

In a way, a deferred prosecution is like a bet with the Court. You are betting that you can go the required time without having any more legal troubles. If you win the bet, you get a great result. If you lose the bet, you generally get a worse result. Because not only do you have the original problem bearing down on you again, but you’ve also proven to the prosecutor that you can’t keep your nose clean for a relatively short period of time.

Especially for first time DUI defendants, this case is the only time they will face legal troubles in their lives. For them, a deferred prosecution is an excellent option, and exactly the sort of situation this was designed for. It allows the Court to supervise the person for a period of time and make sure they can stay out of trouble, but (assuming it works) allows the defendant to keep their record clean of a DUI.

Negotiating a deferred sentence in a Montana DUI can be a trick proposition and requires a thorough understanding of the law and procedures surrounding Drunk Driving charges. I offer a free consultation, what have you go to lose?

When a person is pulled over and the officer conducts a DUI investigation, he is looking for one main thing: evidence that you are impaired by alcohol or drugs. But, the officer has a number of disadvantages regarding the accuracy of his investigation.

The first is that he is unaware of what your normal faculties are. If you’ve had a knee injury, for instance, doing a heel-to-toe walking test may be difficult for you. Likewise, when standing on one foot for a long period of time any number of medical reasons may cause you to sway or lose your balance. These do not reflect on your degree of intoxication or impairment.

There are a number of ways that police try to collect proof against a driver suspected of DUI in Montana. One is by asking about alcohol consumption. An officer could ask, for instance, if you have been drinking and if so, how much. Another aspect the officer will evaluate is your performance on field sobriety tests, where you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. The officer will evaluate your performance on these tests, although his or her perception is highly subjective, and may be colored by the fact that he already suspects you are intoxicated.

Perhaps the most important test the officer will ask you to submit to is a breathalyzer. Although there is evidence to suggest that these machines are not nearly as accurate as police claim they are, the results are still admissible in court.

In addition to these tests, the officer is also watching for other signs of intoxication like bloodshot eyes for example. But as anyone with allergies or contacts can tell you, drinking isn’t the only way to get red eyes.

The bottom line is that while an officer is watching for certain things during a DUI investigation, many of these factors can be caused by completely innocent facts that the officer is not aware of. If you have been wrongly accused of driving under the influence of alcohol or drugs in Montana, please call me today at (406) 752-6373 for a free consultation.

Arraignment is the proceeding where the defendant may plead guilty or not guilty to the charge. Before accepting the plea, the judge must advise the defendant of all the rights listed in 46-12-210 and 46-7-102 MCA. The arraignment may be conducted with the defendant physically present before the Court or by two-way electronic audio-video communication pursuant to 46-12-201(4) MCA.

At the arraignment, the Court must inform the defendant of the charge and should do so by reading the complaint aloud to the defendant. The judge should explain that the defendant is charged with driving under the influence of alcohol and/or drugs or driving with .08 or more AC, and that the charge is not what is traditionally known as “Drunken Driving.” The Court should ask if the defendant has a copy of the complaint. If not, a copy of the complaint must be given to the defendant.

The possible punishment specific to a first or subsequent violation must be explained to the defendant.

The Court is required to inform the defendant of the following constitutional and Statutory rights:

the right to counsel and to have counsel appointed if the defendant cannot afford one (See Section II Part A “Initial Appearance”);

the right to trial by jury, in either the limited jurisdiction court or at the district court level, or a trial before the judge;

the right to confront and cross-examine witnesses;

the right to subpoena witnesses on behalf of the defendant;

the right to remain silent throughout the proceeding;

the right to be proven guilty beyond a reasonable doubt;

a guilty plea may result in deportation for an alien; and

that a plea of guilty may waive the right to trial and appeal.

Additionally:
(9) the defendant has the right to a reasonable time before entering a plea. At least one day must be given to the defendant on request. If the Defendant remains in custody, (10) then the right to secure bail to be released from custody must be explained to the defendant.

Once advised of his rights, the defendant may plead guilty, not guilty, or nolo contendere to the complaint. If he refuses to plead, the Court must enter a plea of not guilty.

After DUI charges are filed there are three basic stages to the case: 1) Initial Appearance; 2) Arraignment; and 3) Trial. Although most people think of trials when they think of Court, the truth is that many Montana DUIs are resolved without a trial.

State law requires that after a person is arrested, he must be taken before the nearest and most accessible judge without unnecessary delay for an initial appearance. The judge must advise the defendant of the charge or charges filed and of the right to

counsel;

to appointed counsel if the defendant cannot afford a DUI attorney;

to bail;

to remain silent and that any statement made may be used against him as evidence;

to a probable cause hearing for a felony;

of the right to a jury trial for any misdemeanor charge.

Montana statute 46-12-210 lays out all the rights that a defendant must be advised of at arraignment, including the possible penalties for the crime charged. At the initial appearance, the judge must set bail or release the defendant on his own recognizance bail. In practice, many Montanans charged with DUI will have their initial appearance and arraignment at the same time.

Paul Sullivan, Esq.

Paul is a partner at Measure, Sampsel, Sullivan & O'Brien, P.C. in Kalispell, MT. He is an ivy-league educated, DUI Lawyer specializing in defending Montanans accused of Driving Under the Influence of Drugs or Alcohol. He represents clients across Montana in misdemeanor and felony charges, and license hearings.
Call 752-6373 today for a free initial consultation.